Judge denies request to temporarily block election law

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Photo credit: Phil Roeder

A Shawnee County judge on Thursday denied a request to temporarily block a state law that critics said would lead to the prosecution of Kansans registering new voters.

Judge Teresa Watson denied the request to stop a section of a broader election law that made it illegal for someone to give the appearance of holding themselves out as an election official. An immediate appeal is planned.

Teresa Watson

Judge Teresa Watson said the law required an intent to mislead the public into believing someone was acting as an election official, rejecting claims the law would lead to unwarranted prosecutions of anyone trying to register new voters.

In a 15-page opinion, Watson emphasized language in the bill that required someone to “knowingly” give the appearance of misrepresenting an election official.

“Plaintiffs downplay the word ‘knowingly’ … almost to the point of ignoring it,” Watson said in her ruling.

“‘Knowingly’ means that the actor must be aware of his or her conduct or circumstances and aware that the conduct is reasonably certain to cause the prohibited result,” Watson wrote in her opinion.

“The statute requires a culpable state of mind on the part of the actor; there is no violation based solely on the subjective perception of a bystander.

“Indeed, to be convicted of a crime as defined in (the law) requires that the actor – not the bystander – be reasonably certain that what he or she is doing gives the appearance of or causes another person to believe that he or she is -specifically – the secretary of state, a county election official, a county clerk, or an employee of any of those.”

Critics said the provision of the false repesentation part of the law could lead to Kansans being charged with a crime just by helping someone register to vote.

They argued in their court filings that this provision would chill the free speech activities of various organizations to help Kansans know how to vote.

The lawyer for the plaintiffs said the law was written so broadly that a prosecution could be brought based on someone’s perceptions.

Four groups – the League of Women Voters of Kansas, Loud Light, the Kansas Appleseed Center for Law and Justice and the Topeka Independent Living Resource Center – asked the judge to temporarily block the false representation portion of the law.

Their request for the injunction is separate from their overall state lawsuit challenging parts of two elections laws passed this year. A separate lawsuit against one of the new laws is pending in federal court.

A couple of the voting rights groups who are challenging the law, said they dropped plans to register voters out of fear that they would be prosecuted because they might be wrongly perceived as an election official.

For instance, Loud Light said it abandoned voter registration drives planned for July 1 to mark the 50th anniversary of the 26th Amendment, which gave the right to vote to anyone 18 and older.

The group also canceled plans to register voters on college campuses throughout the state when students returned to campus this year.

The League of Women Voters, meanwhile, dropped plans to register voters at the Kansas State Fair out of fear of criminal prosecution.

Teresa Woody, the lawyer for Kansas Appleseed, expressed disappointment in the judge’s ruling.

“The knowingly analysis is unsound,” Woody said.

She said the word “knowingly” goes to an action, not an intent.

“We knowingly take actions all the time to register voters,” she said.

“We knowingly send out texts. We knowingly go door to door and knock on doors. We do all those things and we understand there are some people out there who may think that’s an election official,” she said.

“We, of course, do those things knowingly. That’s not the problem,” she said.

“The problem is there is no requirement that we intend to fool somebody. If they say they’re fooled, it doesn’t matter that we didn’t intend that.”

Watson, appointed to the bench by former Gov. Sam Brownback, found that the plaintiffs claims were undercut by their affidavits in which they stated that they clearly identified themselves when registering voters.

“The scenarios described by plaintiffs in their affidavits do not help them,” Watson wrote.

“A representative of each organizational plaintiff stated that its members always identify themselves as members of their respective organizations and not as election officials,” she ruled.

“In light of their own evidence, it is difficult to credit plaintiffs’ fear of prosecution for knowingly engaging in false representation through certain conduct when plaintiffs insist that their members always correctly identify themselves as affiliates of their own organizations and not as government officials,” she ruled.

The law has sparked controversy since it was passed earlier this year.

Douglas County District Attorney Suzanne Valdez announced that she would not make cases under the law, which sparked a fight with Republican Attorney General Derek Schmidt, who is running for governor.

Valdez said the law would make criminals out of well-intentioned groups trying to encourage Kansans to participate in democracy.

“This law criminalizes essential efforts by trusted nonpartisan groups like the League of Women Voters to engage Kansans on participation in accessible, accountable and fair elections,” Valdez said.

“It is too vague and too broad and threatens to create felons out of dedicated defenders of democracy.”